UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

CASE NO: 09:11-CV 80880-KLR
QSGI, Inc., a Delaware Corporation,
Plaintiff,
v.
IBM GLOBAL FINANCING, a Division of
International Business Machines Corp., and
INTERNATIONAL BUSINESS MACHINES
CORP., Parent to and/or d/b/a IBM GLOBAL
FINANCING,
Defendants.
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PLAINTIFF'S MOTION TO QUASH DEFENDANTS'S UBPOENA DUCES TECUM TO
MORISON COGEN L L J ~
Plaintiff, QSGI, Inc., by and through its undersignd counsel, and pursuant to Federal
Rule of Civil Procedure 45(c), files this Motion to Quash Defendants' Subpoena Duces Tecum
("Subpoena") to Morison Cogen LLP, on the grounds that tte infonnation and materials sought
are protected by Florida's accountant-client privilege. 90.;055, Fla. Stat. (2012). In support
thereof, Plaintiff states the following:
Background
I. Defendants served the Subpoena, dated May 29, 2012, on Morison Cogen LLP
("Morison Cogen"), an accounting finn Plaintiff has used for general accounting purposes. A
copy ofthe Subpoena is attached hereto as Exhibit A.
2. Morison Cogen is not a party to, and does not represent a party in connection with, the
above-captioned litigation.
Case 9:11-cv-80880-KLR Document 92 Entered on FLSD Docket 06/13/2012 Page 1 of 5
QSGI has Standing to Object to the Subpoena
3. A party has standing to object to a third-party subpoena duces tecum with respect to
Privilege or similar grounds personal to the party. See Was,zington v. Thurgood Marshall Acad.,
230 F.R.D. 18,23 (D.C. CiT. 2005); Stevenson v. Stanley Bostitch, Inc .. 201 F.R.D. 551,555
(N.D. Ga. 2001)(,,[Ilt appears to be the general rule of the federal courts that a party has standing
to challenge a subpoena when she alleges a 'personal right or privilege with respect to the
materials subpoenaed."')(quoting Brown v. Braddick, 595 F. 2d 961, 967 (5th Cir. 1979.
4. Because the information and materials requested in the Subpoena are subject to the
accountant-client privilege, QSGI has standing to object to tl,e production of documents pursuant
to the Subpoena.
Florida's Accountant-Client Privilege Statute Appliefl to Prevent Disclosure of the
Information Sought in the Subpoena
5. Federal Rule of Evidence 501 provides the following:
[Iln civil actions and proceedings, with respect to an element of a claim or defense as to
which State law supplies the rule of decision, th e privilege of a witness, person,
government, State or political subdivisions thereof ,hall be determined in accordance
with State law.
6. Because this litigation is pending in the United StU' es District Court for the Southern
District of Florida on the basis of diversity jurisdiction, this Court must apply Florida's law with
respect to the accountant-client privilege.
7. In Florida, the accountant-client privilege is governed by statute, which provides, in
pertinent part, as follows: "A communication between an acc:mntant and the accountant's client
is 'confidential' if it is not intended to be disclosed to third j:ersons .... " 90.5055(1)(c), Fla.
Stat.
2
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8. The statute defines "accountant" as "a certified publ ic accountant or a public accountant.
Fla. Stat. 90.5055(1)(a). Morison Cogen is a public iccounting finn and qualifies as an
accountant under the statute.
9. The statute also defines a "client" as "any person, public officer, corporation ... , who
consults an accountant for the purpose of obtaining accounting services." Fla. Stat.
90.5055(1 )(b). QSGr was a client of Morison Cogen's pursuant to the statute.
10. The documents requested in the Subpoena to l\(orison Cogen are subject to the
accountant-client privilege, and, therefore, cannot be pwduced to Defendants. Plaintiffs
communications with Morison Cogen, including documents it provided to Morison Cogen, were
not intended to be disclosed to third persons, but rather, were provided to the accounting finn for
the purpose of enabling Morison Cogen to render accounting advice to Plaintiff.
11. Accordingly, the Subpoena from Defendant to Moris,)n Cogen should be quashed on the
basis that the infonnation requested in the Subpoena is su)ject to Florida's accountant-client
privilege, and thus protected from disclosure.
3
Case 9:11-cv-80880-KLR Document 92 Entered on FLSD Docket 06/13/2012 Page 3 of 5
WHEREFORE, based upon the foregoing, Plainti Ff respectfully moves this Court to
quash the Defendants' Subpoena Duces Tecum to Morison Cogen LLP.
Dated: June 13,2012
By:
Respectfully submitted,
THE FERRARO LAW FIRM, P.A.
for the Plaintif[
4000 Ponce de Leon Blvd.
Suite 701)
Miami,I'L33146 ./)
) 375-01)1./
Facsimik 5) /-:1

. UAN P. BAUTA, II, ESQ.
Florida Bar No. 894060
DAMIAN VISCONTI, ESQ.
Florida Bar No. 0068063
4
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CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the [OJ egoing was served via CM/ECF on
all counsel of record this 13th day of June 2012.
THE FERRARO L A ~ M , P.A.
By: . ~ ____ ~ ~ ~ ~ _
/ JUAN P. BAUTA, ESQ.
,. Florid;l Bar No. 894060
5
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Case 9:11-cv-80880-KLR Document 92-1 Entered on FLSD Docket 06/13/2012 Page 1 of 1